Because Theory About The Theory Of Comparative Study

The origin of the validity of contract and its justification have long been regarded as an ambiguous issue. Little relevant research has been done in China. Though studies on some aspects of the validity of contract have been done by some scholars, they are not comprehensive and too abstract, and fail to solve the substantive problem. Why is the contract entrusted to forcible strength or legal effect? It has long been explained by relating to religious idea or ethical philosophy. While in modern time, it has been explained by will theory on laws of various countries. Of course, many scholars have delivered their strong retort to classical will theory, and they think the will theory is lack of ethic value. It is based on this, the author think that it's necessary to make a research on justification of contract. The reason why contract is entrusted forcibility is not that national law stipulate so, while law can entrust legal validity, the carrier of contract validity should only be contract itself. The legal validity is premise of contract validity and should not be considered the same. This paper mainly makes a comparative study of the theory of cause in continental law system and the theory of consideration in Anglo-American law system in terms of their cause of development, theoretical ground, function and developing trend, and comes to a conclusion that our country should choose "will consensus", which is in accordance to social justice, to explain, so as to support theory of autonomy of will, contract freedom, contract justice as important role in civil law. Except abstract, this paper is divided into six parts, with the total of over 30,000 characters.Part one: research object, purpose and method. Point out that on the question of origin of validity of contract, there is no unified explanation model in history, and it is also the object this paper studies, namely, the origin of the validity of contract. Since this paper mainly makes a comparison between theories in two law system, the research method should be comparative method, and another method is value analysis and value reasoning. By describing and explaining value factor in theories related to validity of contract in different legal systems that existed in history, the author extracts some appraisals among them and their sphere of influence. By comparing two theories in two law systems with the above mentioned research method, lessons are drawn from some valuable parts so as to initiate reflections on legislation of contract in China.Part two: Debate of the origin of validity of contract. As to justification of contract validity, namely, the origin of validity of contract, there are mainly four kinds of theories at present: (1) formalism theory; (2) will theory; (3) the theory of cause; (4) the theory of consideration. So this part mainly describes various explanation models.Part three: The theory of cause in Continental Law System. This part focuses on explaining the theory of cause in continental law system, so as to help us to reach a relatively comprehensive understanding to the theory of cause. This part can be divided into three aspects: (1) proposition of the question of cause of contract; (2) development of the theory of cause, from classical theory of cause to modern theory of cause; (3) summary: enlightenment of theory of cause to Chinese Civil Law.Part four: The theory of consideration in Anglo-American law system. This part deals with theory of consideration in Anglo-American law system. Again this part can be divided into three aspects: (1) generation of theory of consideration; (2) development of theory of consideration, the author explains its development process through establishment of "benefit-detriment" rule and query about "benefitdetriment" rules; (3) summary: reference meaning of theory of consideration to Chinese Civil Law.Part five: Comparative study between theory of cause and theory of consideration. Through part three and part four, we come to know some relevant knowledge about theory of cause and theory of consideration. On this basis, this part makes a comparison between theory of cause and theory of consideration from the following three levels: (1) comparison between cause and consideration, comparison of concept and function and their legal basis; (2) comparison of development trend between theory of cause and theory of consideration; (3) analysis on cause of formation of similarities and differences between cause and consideration.Part six: Conclusion: Model selection in Chinese legislation on contract and its significance. On the basis of comparison between theory of cause and theory of consideration, the author thinks that the reason for China to distinguish forcible contract and non-forcible contract lies in the new "will consensus". As a country in the process of economic transition from planed economy to market economy, China should follow the new trend of changes of contract law, and inject the idea of social justice into the contract law. However, because of the long-term practices of planned economy, China is lack of experience and tradition of civil law. As a result, to advocate autonomy of private law and contract freedom is particularly important. By synthesizing factors in various aspects, the author thinks that China should choose "will consensuses" model as explanation model that accord with social justice, namely new "autonomy of will" on the basis of social justice. To sum up, the origin of contract validity lies in two levels, combining autonomy of will internally and social justice externally. So, any valid contract should pursue personal interests on the premise of ensuring social interests.